10.  The applicants, Franja and Ivan Šilih, were born in 1949 and 1940 respectively and live in Slovenj Gradec.
11.  On 3 May 1993, at some point between midday and 1 p.m., the applicants' twenty-year-old son, Gregor Šilih, sought medical assistance in the Slovenj Gradec General Hospital for, inter alia, nausea and itching skin. He was examined by a duty doctor, M.E. On the basis of a diagnosis of urticaria (a type of allergic reaction), M.E. ordered the administration of intravenous injections of a drug containing glucocorticosteroid (Dexamethason) and an antihistaminic (Synopen). Following the injections, the applicants' son's condition significantly deteriorated. This was probably a result of him being allergic to one or both of the drugs. His skin became very pale, he began to tremble and to feel cold; M.E. noticed signs of tachycardia. A diagnosis of anaphylactic shock was made. Subsequently, at 1.30 p.m., the applicant's son was transferred to intensive care. M.E. ordered the administration of, inter alia, adrenaline. By the time the cardiologist arrived, the applicants' son had stopped breathing and had no pulse. Cardiopulmonary resuscitation was given. At around 2.15 p.m. the applicants' son was connected to a respirator and his blood pressure and pulse returned to normal, but he remained in a coma; his brain was severely damaged.
12.  On 4 May 1993 he was transferred to the Ljubljana Clinical Centre (Klinični center v Ljubljani), where he died on 19 May 1993.
13.  The exact timing of the events which led to the death of the applicants' son and the action taken by M.E. in response to his deteriorating condition were disputed in the domestic proceedings.
14.  On 13 May 1993 the applicants lodged a criminal complaint (ovadba) with the Slovenj Gradec Unit of the Maribor First-Instance Public Prosecutor's Office (Temeljno javno tožilstvo Maribor, Enota v Slovenj Gradcu) against M.E. for the criminal offence of “negligent medical treatment” (nevestno zdravljenje) which, following the applicants' son's death, was characterised as “a serious criminal offence that [had] caused damage to health” (hudo kaznivo dejanje zoper človekovo zdravje). The applicants argued that, through the intravenous injection of the two drugs, M.E. had given their son the wrong treatment and had subsequently failed to take appropriate corrective measures after his condition deteriorated.
15.  In the course of the preliminary proceedings (predkazenski postopek) medical documents concerning the treatment administered to the applicants' son were seized by the police and, following his death, the duty investigating judge (preiskovalni sodnik) directed the Ljubljana Institute for Forensic Medicine (Inštitut za sodno medicino v Ljubljani) to conduct an autopsy and prepare a forensic report.
16.  On 26 August 1993 the police submitted a report to the public prosecutor from which it appears that the Ministry of Health (Ministrstvo za zdravstvo) requested the Medical Association (Zdravniško Društvo) to set up a commission to prepare an opinion in the case. The commission was composed of the same experts as those who were preparing the forensic report (see paragraph 17 below). According to the report, the opinion was sent on 11 June 1993 to the Ministry of Health, which published it in two of Slovenia's main newspapers on 19 June 1993.
17.  On 1 July 1993 the Ljubljana Institute for Forensic Medicine submitted their report, which stated, inter alia:
“The anaphylactic shock which ... followed the administration of Dexamethason and Synopen was most likely due to sensitivity to one of the mentioned drugs.
The medical treatment of anaphylactic shock in the Slovenj Gradec Hospital was, on the basis of the medical records, in accordance with established medical practice.
The consequent ventricular fibrillation was influenced by the infection of the heart muscle, which Gregor Šilih must have contracted several weeks before 3 May 1993.
After the ventricular fibrillation occurred, the hospital staff gave resuscitation. According to the medical records, this was performed in accordance with established medical practice.
In the period from Gregor Šilih's admission to the Slovenj Gradec Hospital until his death, we have not found any acts or omissions in his medical treatment which could be characterised as clearly inappropriate or negligent.”
18.  On 8 April 1994 the public prosecutor dismissed the applicants' criminal complaint on the ground of insufficient evidence.
19.  On 1 August 1994 the applicants, acting as “subsidiary” prosecutors (subsidiarni tožilec), lodged a request for the opening of a criminal investigation (zahteva za preiskavo) into M.E.'s conduct.
20.  On 8 November 1994, having heard representations from M.E. on 26 October 1994, the investigating judge of the Maribor First-Instance Court (Temeljno sodišče v Mariboru) granted their request. On 27 December 1994, on an appeal (pritožba) by M.E., the interlocutory-proceedings panel (zunaj-obravnavni senat) of the Maribor First-Instance Court overturned the investigating judge's decision after finding that the evidence in the case-file, in particular the forensic report, did not afford reasonable grounds for suspecting M.E. of manifestly acting in breach of professional standards.
21.  An appeal by the applicants and a request for the protection of legality (zahteva za varstvo zakonitosti) were dismissed, the latter in a decision of 29 June 1995 by the Slovenj Gradec District Court (Okrožno sodišče v Slovenj Gradcu), which obtained jurisdiction in the case after the reorganisation of the judiciary in 1995. The applicants contested that decision. On 5 October 1995 the Maribor Higher Court (Višje sodišče v Mariboru) dismissed their appeal on essentially the same grounds as those on which the previous appeal and request for the protection of legality had been rejected, namely that the applicants were not entitled to appeal against the interlocutory-proceedings panel's decision not to institute criminal proceedings against the doctor.
22.  Subsequently the applicants obtained a medical opinion from Doctor T.V. who stated, inter alia, that myocarditis (inflammation of the heart muscle), which had previously been considered a contributory factor in the death of the applicants' son, could have occurred when he was in anaphylactic shock or even later. As a result, on 30 November 1995 they lodged a request to reopen the criminal investigation (see paragraph 90 below). In addition, they lodged a motion to change the venue of the proceedings to the Maribor District Court (Okrožno sodišče v Mariboru). On 31 January 1996 the Maribor Higher Court granted their motion for a change of venue.
23.  On 26 April 1996 the interlocutory-proceedings panel of the Maribor District Court granted the applicants' request for the reopening of the investigation. An appeal by M.E. was rejected by the Maribor Higher Court on 4 July 1996.
24.  In the course of the investigation, the investigating judge examined witnesses and obtained an opinion from P.G., an expert at the Institute of Forensic Medicine in Graz (Austria). P.G. stated in his report that the administration of the antihistaminic had led to the applicants' son's serious allergic reaction. He expressed doubts as to the pre-existence of myocarditis.
25.  On 10 February 1997 the investigating judge closed the investigation.
26.  Owing to the complexity of the case, the applicants asked the Maribor District Public Prosecutor's Office (Okrožno državno tožilstvo v Mariboru) to take over the conduct of the prosecution. Their request was rejected on 21 February 1997. The Head of the Maribor District Public Prosecutor's Office subsequently explained to the Supreme Public Prosecutor (Vrhovni državni tožilec) that, while P.G.'s report confirmed the existence of reasonable suspicion that M.E. had caused the death by negligence, it was not a sufficient basis on which to lodge an indictment as that required a degree of certainty.
27.  On 28 February 1997 the applicants lodged an indictment accusing M.E. of the criminal offence of “causing death by negligence” (povzročitev smrti iz malomarnosti).
28.  On 7 May 1997, upon M.E.'s objection to the indictment, the interlocutory-proceedings panel of the Maribor District Court directed the applicants to request, within three days, additional investigative measures (see paragraph 93 below).
29.  The investigating judge subsequently examined several witnesses and ordered a forensic report by K.H., an Austrian forensic expert in the field of emergency medicine and anaesthesia. K.H. stated in his report that the ultimate reason for the death of the applicants' son was relatively uncertain, so that the issue of the effectiveness of the measures taken by M.E in response to the son's condition was of no relevance.
30.  On 22 June 1998 the investigating judge informed the applicants that it had been decided to close the investigation. He reminded them that they must either lodge an indictment or a further request for additional investigating measures within fifteen days (see paragraphs 91-92 below).
31.  On 30 June 1998 the applicants asked the investigating judge to question K.H., P.G. and T.V.
32.  On 24 November 1998, after questioning K.H., the investigating judge informed the applicants that the investigation had been closed. They were again reminded that they must either lodge an indictment or a further request for additional investigative measures within fifteen days.
33.  On 10 December 1998 the applicants lodged an indictment supplemented by evidence that had been obtained in the extended investigation. On 12 January 1999 an interlocutory-proceedings panel rejected M.E.'s objection to the initial indictment as unfounded.
34.  On 22 January 1999 M.E. lodged a request for the protection of legality, claiming that the indictment submitted on 10 December 1998 had not been served on her. On 25 February 1999 the Supreme Court (Vrhovno sodišče) quashed the Maribor District Court's decision of 12 January 1999 and remitted the case to the District Court with instructions to serve the indictment of 10 December 1998 on M.E. M.E. subsequently lodged an objection to that indictment and on 3 June 1999 the interlocutory-proceedings panel decided to refer the case back to the applicants, directing them to obtain further evidence – by requesting additional investigative measures – within three days from the service of its decision.
35.  The applicants complied with the directions and on 21 June 1999 requested additional investigative measures, in particular the examination of K.H., P.G. and T.V. In their request, they complained of the remittal of the case since they considered that the evidence should have been further assessed at the trial and not at that stage of the proceedings.
36.  Further to their request, the investigating judge ordered a supplementary report from K.H. and, on 3 December 1999, informed the applicants that further investigative measures had been taken and that they had 15 days in which to lodge an indictment or request additional measures.
37.  Following a request by the applicants on 16 December 1999 for further measures, the investigating judge ordered a reconstruction of the events of 3 May 1993 and the examination of two witnesses.
38.  The investigation was closed on 3 May 2000. The applicants were reminded of the requirements under section 186, paragraph 3, of the Criminal Procedure Act (“the CPA” – see paragraph 92 below).
39.  In the meantime, on 28 June 1999 the applicants again made an unsuccessful request to the public prosecutor to take over the conduct of the prosecution.
40.  On 19 May 2000 the applicants filed a further indictment and the additional evidence they had been directed to obtain.
41.  In August 2000 the applicants complained to the Judicial Council (Sodni svet) about the length of the criminal proceedings. They also challenged the three judges sitting on the interlocutory-proceedings panel which had previously heard M.E.'s objection to the indictment. On 10 October 2000 the President of the Maribor District Court rejected the applicants' request for the judges to stand down.
42.  Following a further objection to the indictment by M.E., the interlocutory-proceedings panel examined the case on 18 October 2000 and decided to discontinue the criminal proceedings. Relying in particular on the opinions of the Ljubljana Institute of Forensic Medicine and K.H., it found that the applicants' son's reaction to the administration of Dexamethason and/or Synopen was a consequence of his sensitivity to those drugs and of myocarditis, which was undoubtedly a pre-existing condition. As regards the conduct of M.E., the interlocutory-proceedings panel found that there was insufficient evidence to substantiate the applicants' accusation that she had committed the criminal offence alleged. The applicants were ordered to pay the court fees and the expenses incurred in the proceedings since 23 January 1999 (the date the CPA was amended so as to require the aggrieved party to pay costs if the proceedings ended with the dismissal of the indictment).
43.  On 7 November 2000 the applicants lodged an appeal which the Maribor Higher Court dismissed on 20 December 2000. They then petitioned the Public Prosecutor-General (Generalni državni tožilec), asking him to lodge a request for the protection of legality with the Supreme Court. Their petition was rejected on 18 May 2001.
44.  In the meantime, on 13 March 2001 the applicants lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče), complaining of procedural unfairness and the length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory-proceedings panel. On 9 October 2001 the Constitutional Court dismissed their appeal on the ground that after the final discontinuance of criminal proceedings a “subsidiary” prosecutor could not appeal to the Constitutional Court, as he had no locus standi before that court.
45.  On 27 March 2001 the applicants also lodged a criminal complaint alleging improper conduct on the part of seven judges of the Maribor District and Higher Courts who had sat in their case. The complaint was dismissed as unfounded by the Maribor District Public Prosecutor's Office on 13 June 2001.
46.  Subsequently, the applicants made several attempts to reopen the case. Among other motions filed by the applicants that were rejected as inadmissible by the authorities were the following.
On 3 July 2001 they lodged a “request for the criminal proceedings to be reinstated”, which was considered in substance to be a request for the reopening of the case. On 29 August 2001 the interlocutory-proceedings panel of the Maribor District Court dismissed the request on the grounds that the criminal proceedings had been discontinued in a decision that was final and that it would be detrimental to the accused to reopen the case. On 9 November 2001 the Maribor Higher Court rejected an appeal by the applicants dated 4 September 2001.
On 24 June 2002 the applicants lodged with the Maribor Higher Court a “request for immediate annulment of the entire criminal proceedings ... conducted before the Maribor District Court”. This was also considered in substance to be a request for the reopening of the case and was likewise dismissed. On 27 November 2002 the Maribor Higher Court rejected an appeal by the applicants.
47.  Ultimately, on 17 July 2002 the applicants lodged a fresh indictment against M.E. On 14 July 2003 the Slovenj Gradec District Court struck the indictment out because the prosecution of the alleged offence had become time-barred on 3 May 2003.
48.  On 6 July 1995 the applicants instituted civil proceedings against the Slovenj Gradec General Hospital and M.E. in the Slovenj Gradec District Court for the non-pecuniary damage they had sustained as a result of their son's death in the amount of 24,300,000 Slovenian tolars (SIT).
49.  On 10 August 1995 they also instituted proceedings against the head of the internal medical care unit, F.V., and the director of the Slovenj Gradec General Hospital, D.P. Further to a request by the applicants, the court joined the two sets of proceedings.
50.  All the defendants in the proceedings had lodged their written pleadings by October 1995.
51.  On 30 August 1997, in a supervisory appeal (nadzorstvena pritožba) to the President of the Slovenj Gradec District Court, the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed.
52.  On 21 October 1997, referring to sub-paragraph 1 of section 213 of the Civil Procedure Act (see paragraph 97 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the determination of the preliminary question (predhodno vprašanje), namely the verdict in the criminal proceedings. The applicants did not appeal against that decision, which therefore became final on 17 November 1997.
53.  On 22 October 1998 Judge S.P. replied to a supervisory appeal by the applicants dated 15 October 1998, inter alia in the following terms:
“[The applicants] are 'subsidiary' prosecutors in the criminal proceedings and therefore are very well aware that the proceedings before the Maribor District Court, where the preliminary question is being determined, have not been completed. Their supervisory appeal concerning the stay of the [civil] proceedings is therefore pure hypocrisy.”
Upon a complaint by the applicants lodged with the Ministry of Justice, Judge S.P. was ordered to explain her reply to the applicants.
54.  In February 1999 the applicants again filed a supervisory appeal; the stay, however, remained in force.
55.  On 27 August 1999 Judge P.P., to whom the case appears to have been assigned in the meantime, sent the applicants a letter, in which he stated, inter alia:
“In the instant case the determination of criminal liability is a preliminary question which is relevant to the determination of the civil claim, since a civil court cannot establish facts which are different from those established by the criminal court.”
56.  On 8 September 1999 the applicants filed a motion for a change of venue which the Supreme Court rejected on 13 October 1999.
57.  On 6 December 1999 the Slovenj Gradec District Court informed the applicants that the reasons for staying the proceedings still obtained.
58.  On 12 March 2001 the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted. On 19 May 2001 Judge P.P. scheduled a hearing for 13 June 2001. However, that hearing was subsequently cancelled at the applicants' request after their representative explained that she had been injured in a road accident and was on sick leave.
59.  On 11 June 2001 the applicants filed a further motion for a change of venue. On 27 September 2001 the Supreme Court decided to move the venue to the Maribor District Court on the grounds of “tension that was impeding and delaying the trial”.
60.  The case was subsequently assigned to Judge M.T.Z. On 3 April 2002 the Maribor District Court held a hearing which was adjourned as the applicants indicated that they wished to lodge a request for the judges officiating at that court to stand down.
61.  After lodging a criminal complaint against some of the judges (see paragraph 45 above), the applicants filed a motion on 8 April 2002 for all the judges at the Maribor District Court and Maribor Higher Court to stand down. Having been asked to comment on the applicants' request, Judge M.T.Z. stated, inter alia, that she had realised at the hearing on 3 April 2002 that one of the defendants, with whom she had shaken hands at the hearing, was a close acquaintance (“dober znanec”) of her father. She added that the applicants were constantly lodging objections which had made it impossible to conduct the proceedings properly. It would appear that Judge M.T.Z subsequently herself requested permission to withdraw from the case. On 12 August 2002 the request for the judges to stand down was granted in so far as it concerned Judge M.T.Z. The case was assigned to Judge K.P.
62.  On 21 November 2002 and 20 March 2003 the Supreme Court rejected the applicants' motions for a change of venue.
63.  A hearing scheduled for 12 June 2003 was adjourned at the applicants' request, after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in the Ljubljana Clinical Centre. They subsequently informed the court that their lawyer would, in fact, continue to represent them.
64.  On 28 October 2003 the Maribor District Court held a hearing at which it examined F.V. and M.E. It would appear from the records of the hearing that the applicants were not allowed to ask a series of twelve questions they wished to put. The judge's decision not to allow the questions was based mostly on objections made by the defendant, although on four occasions the court does appear to have stated reasons for its decision not to allow the question concerned.
65.  On 8 December 2003 the applicants filed a motion for Judge K.P. to stand down. That request was rejected on 18 December 2003.
66.  A hearing scheduled for 16 January 2004 was adjourned because the applicants had lodged a further motion for a change of venue. On 5 March 2004 the applicants lodged another motion. Both motions were rejected by the Supreme Court (on 22 January 2004 and 13 May 2004 respectively).
67.  It appears that hearings scheduled for 23 and 24 March 2005 were adjourned because of the applicants' newly appointed lawyer's commitments in another, unrelated case.
68.  On 4 May 2005 the applicants filed written submissions and amended their claim for damages. They also requested that the proceedings be expedited.
69.  On 12 October 2005 Judge D.M., to whom the case had apparently meanwhile been assigned, was ordered by the President of the Maribor District Court to treat the case with priority and to report every sixty days on the status of the proceedings. The President explained his decision by referring to the length of the proceedings, the case's high profile and the intervention by the Ombudsman (Varuh človekovih pravic).
70.  A hearing was held on 23, 25 and 27 January 2006 before Judge D.M. The applicants withdrew their claims in respect of F.V. and D.P. After the hearing, they requested Judge D.M. to stand down on the grounds that she had refused to allow them adequate time to reply to their opponent's extensive submissions which had been filed on the same day. Their request was rejected by the President of the Maribor District Court on 30 January 2006. However, on 31 January 2006 Judge D.M. herself asked to withdraw from the proceedings on the ground that her full name had been mentioned in a newspaper article on 28 January 2006 which had also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings. The president of the court upheld her request as being “certainly well-founded”.
71.  The case was subsequently assigned to Judge A.Z.
72.  Hearings were held on 16 June and 25 August 2006.
73.  On 25 August 2006 the Maribor District Court delivered a judgment rejecting the applicants' claim, which ultimately amounted to SIT 10,508,000 in respect of non-pecuniary damage and SIT 5,467,000 in respect of pecuniary damage. The applicants were ordered to pay legal costs to the defendants. Relying on the expert opinions, the court concluded that M.E. could not have foreseen the applicants' son's reaction to the drugs that were administered to him and that she and the hospital staff had acted in accordance with the required standard of care. In addition, the court rejected as unsubstantiated the applicants' claim that the hospital was not properly equipped.
74.  On 25 October 2006 the applicants lodged an appeal with the Maribor Higher Court. They argued that the first-instance court had not correctly established all the relevant facts, had wrongly applied the substantive law and had committed a procedural error by not allowing or taking into account certain evidence and, in particular, by refusing to obtain a further expert opinion.
75.  On 15 January 2008 the Maribor Higher Court rejected the appeal as unsubstantiated and upheld the first-instance court's judgment.
76.  On 28 February 2008 the applicants lodged an appeal on points of law (revizija).
77.  On 10 July 2008 the Supreme Court rejected the applicants' appeal on points of law after noting that, apart from the reference to the European Court of Human Rights' judgment finding a violation of Article 2 of the Convention, it raised essentially the same complaint as their appeal to the Higher Court, namely the refusal to obtain or consider certain evidence the applicants considered relevant. It rejected the complaint as unsubstantiated, finding that the lower courts had acted in accordance with the law. It further held that the European Court of Human Rights' judgment, which related to the requirement for the prompt examination of cases concerning death in a hospital setting, could not have influenced its conclusion as to the lawfulness of the refusal to obtain or consider the evidence in question.
78.  On 15 September 2008 the applicants lodged a constitutional appeal with the Constitutional Court alleging a violation of the following constitutional guarantees: the right to equality before the law, the inviolability of human life, the right to equal protection, the right to judicial protection and the right to legal remedies.
The proceedings are still pending.
79.  On 29 April 2002 the Maribor District Public Prosecutor lodged a bill of indictment (obtožni predlog) against the first applicant alleging that she had engaged in insulting behaviour by saying to an official at the Maribor District Court “I have had enough of this f*** court, the damn State does not do anything, isn't it aware that our son was killed!”. The prosecution was based on a criminal complaint filed by the Maribor District Court.
80.  On 5 October 2004 the Maribor District Court withdrew the criminal complaint as a result of the Ombudsman's intervention (see paragraph 85 below). The Maribor Local Court subsequently dismissed the bill of indictment.
81.  The applicants lodged several petitions with the Ombudsman's office concerning the conduct of the civil proceedings. Their case was reported in the Ombudsman's Annual Reports of 2002, 2003 and 2004.
82.  In a letter to the President of the Slovenj Gradec District Court on 24 April 2001, the Deputy Ombudsman stressed that the issue of criminal liability could not be regarded as a preliminary question in the civil proceedings instituted against the doctor and the hospital. He further stated that there was no justification for staying the civil proceedings.
83.  In a letter to the applicants of 29 August 2002 and his Annual Report of 2002 (pp. 42 and 43), the Ombudsman criticised the conduct of Judge M.T.Z. He stressed that the judge had expressed concerns about her ability to appear impartial only after the applicants had filed the request for her to stand down and after the Ombudsman's intervention in the case, although she had been aware of the reasons for the concerns beforehand.
84.  The section of the Ombudsman's Report of 2003 (pp. 226-228) dealing with the applicants' case and in particular criticising aspects of the judge's conduct of the civil proceedings states, inter alia:
“In the record of the hearing [of 28 October 2003] reference is made to twelve questions which the plaintiffs were not permitted to ask. ... As regards the majority of these twelve questions, the record contains no indication why the judge did not allow the plaintiffs to put the questions. In each instance, there was a prior objection by the defendants' representatives to the question.
...
Although [the applicants'] reactions, statements and proposals were perhaps extreme on occasion, the authorities, including the courts, ought to have taken into account their emotional distress ... [a factor which] may necessitate the trial being conducted in a particularly tolerant and flexible way, [though] without breaching procedural rules to the detriment of the defendants. However, the record of the hearing gives the impression of a tense rather than dispassionate atmosphere at the hearing, an impression that is reinforced also by the records of the exchanges between the judge and the plaintiffs' representative.”
85.  In his Annual Report of 2004 (pp. 212-214), the Ombudsman criticised the Maribor District Court for filing the criminal complaint against the first applicant. The report drew attention to the Maribor District Court's explanation that it was required by law to file and pursue the criminal complaint as it would be guilty of a criminal offence if it did not. The Ombudsman stressed that there was no legal basis for such a conclusion. On the contrary, a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party's criminal complaint, which in the instant case was the Maribor District Court's complaint. Following the Ombudsman's intervention and in view of the arguments set out in his letters, the Maribor District Court decided to withdraw the criminal complaint against the first applicant.